Recently, Prof. Beckwith wrote a rather helpful piece at Public Discourse on avoiding bad pro-life arguments when defending the pro-life position. The following comments are an analysis of Lisa Harris’ lauded article “Recognizing Conscience in Abortion Provision,” published in the New England Journal of Medicine in 2012. Pro-life advocates or bioethicists should learn from mistakes that Harris makes to avoid begging the question against their opponents or framing the issue in an unfair manner.
It seemed fitting to publish my analysis on the blog in view of the upcoming Roe v. Wade anniversary.
Preface: Backstory to “Compulsion” and Conscience
As a prefatory note, the three uses of “compel” in Harris’ article are interesting. It seems to me that “compel” (or similar words) in regard to conscience are usually used today to mean an external compulsion (cf. the uses in Sulmasy 2008, p. 147). The author, by using the word for internal compulsion, is actually returning to the “trappings” of the older notion of conscience (cf. Hoffmann 2011, p. 257: “Conscience is said to provoke, urge, or bind me to act (instigare, inducere, ligare).”). Harris does this without owning up to the fact that her actual definition of conscience is clearly subjectivist and thus incompatible with the deeper traditions whose vocabulary she is hijacking.
The term “compel” in this context reminds me of the early modern period of religious wars among Protestants and between Protestants and Catholics. Debates raged over Luke 14:23: “And the Lord said to the servant: Go out into the highways and hedges, and compel them to come in [compelle intrare], that my house may be filled.” This was also a medieval point of debate: see St. Thomas, Summa Theologiae, IIa-IIae, q. 10, a. 8. So, the historical roots of “compulsion” regarding religious belief, its connection to the early modern and contemporary liberal “neutralized” approach to morality in the public square, and the nature of freedom run deep. Harris’ article, the beneficiary of this long tradition of neutering ethical language, is written in either pure indifference to this backstory or blissful ignorance of it. However, as I discovered, she does implicitly appeal and mimic the holding of a Supreme Court decision regarding the nature of religion: “Whether a religious belief is true or false is irrelevant to a judicial determination, as long as the belief is sincerely held.”
MacIntyre, After Virtue, and Incompatible Moral Languages
The most general point to be made about Harris’ article is that it really embodies the sort of confusion of moral vocabulary and basic slide to emotivism which is discussed in Alasdair MacIntyre’s After Virtue, the first two chapters. That is, Harris’ call for a “standard curriculum” or “standard of care” (p. 983), or her complaint that “The terms used in the current debate, however, are inadequate and inaccurate” (ibid.), is what we all are searching for in the “moral post-apocalyptic scenario” of modernity (to borrow MacIntyre’s image).
By co-opting traditional language, Harris makes her article’s plea superficially appealing. This gets to her begging the question and her framing of the problem (below). Yet she appears to assume that it is her partial vocabulary set that is the one which gets to reconstitute the whole moral language.
We can see this on p. 983, her summary argument: “Failure to recognize that conscience compels abortion provision, just as it refusals to offer abortion care, renders ‘conscience’ an empty concept and leaves us all with no moral ground (high or low) on which to stand” (my emphases).
So, Harris is effectively arguing: If we do not accept that conscience can morally compel action, then conscience is an empty concept. Hypotheticals or conditionals like this one usually have a suppressed premise that connects the two clauses. In this case, based on her prior arguments, it seems fair to say that she means: If conscience is, by definition [see p. 982, col. a], my most deeply held, core set of moral beliefs, then conscience can morally compel my action. However, if we do not accept that conscience can morally compel action, then that definition is not what conscience is. Therefore, conscience is an empty concept.
Construing her overall argument in that way shows it to be a valid argument (i.e., the conclusion follows from how the premises are formally constructed). That means the only way to attack the argument itself is by arguing that one of the premises is false. This means that, while her conclusion “Conscience is an empty concept,” is something that we (like her) want to be false, if it follows from her false definition of conscience, then it is not a soundly defended conclusion.
So we have to ask if Harris has supported her definition of conscience (p. 982, column a). She has not, and her definition is highly questionable. Also, her definition of conscience is tricky because it agrees in part with the true definition of conscience. I think the way to see how she has avoided doing the hard work of defending her definition is to look first at how she sets up the whole entire topic.
The “False Problem” Approach
By the end of the article’s first few sentences, the general premise that Harris has established is fairly clear, but it hides a lot of assumptions.
1. “Conscience” and “exercise of conscience” are usually taken in the Judeo-Christian tradition as the habit and the act of discriminating between objective right and wrong (the habit is also called synderesis, the act is called conscience; see Sulmasy 2008, Hoffmann 2011). Is Harris denying this definition or merely re-describing conscience?
2. Note that between the second and third sentences (p. 981) Harris slides from “conscience-based” to “conscientious.” Yet someone can follow a badly-formed conscience very conscientiously.
3. If Harris is re-describing or limiting the term “conscience” to one’s merely subjective assessment of right and wrong, not an objective one, then it’s difficult to see how she hasn’t begged the question regarding the whole debate.
4. To attack the premise of her article, there is a very good reason for the supposed ‘one-sidedness’ of “conscientious objection.” It is entirely morally different and very significant to refrain from vs. engage in a morally debated course of action. Harris only recognizes this distinction later, p. 982, (discussed below).
Harris continues to develop what I’m calling the “false problem” approach on p. 981, col. b: “[The Church amendment] also prohibits discrimination against those who do perform ‘a lawful sterilization procedure or abortion,’ though it does not recognize that moral convictions might drive such care.”
Again, this seems to be a false problem; or, another way to phrase my intuition here is that “the burden of proof” here lies with pro-abortion side. It is presumed by dint of long medical history that people think killing babies is bad, so there is need to focus on the rights of people who still think that, and not the rights of those now enable by law to perform abortions. The latter of permitted to while the former are permitted to refrain from.
Here is also where Harris introduces her notion that one must have moral convictions in order to perform abortions. One would certainly hope so, if the doctor is acting freely! (The other options are performing abortions out of ignorance, by violent compulsion, or because of some bizarre insanity.) Again, such a recognition can be assumed when one is discussing the point of view of the law. That is part of the set of reasons why such laws were passed (that there are doctors morally willing to perform abortions).
The final step for her “false problem” approach is p. 981, col. c: “Conscientious refusals and opposition to abortion grew up together, so to speak,” and her talk of this refusal approach being “naturalized” in the paragraph that follows (ending on p. 981; the “introduction” ends there, and then her main argument starts).
This really does solidify her “false problem” approach: If one ignores all approaches to medical ethics prior to 1973, then one discovers this “Big Bang” of conscientious objection against abortion after 1973. (Well, of course you do!) Her objection then follows: Why don’t we recognize the conscientious compulsion for performing abortions? Answer: Because everyone before this basically agreed this abortion was wrong.
While what I just made is an empirical claim, I think it is borne out by medical vocabulary, as a type of indication. Older medical dictionaries (e.g., Black’s, 18th ed., 1944; see here and here), defined “abortion” as what we now term “spontaneous abortion,” and what we call “abortion” was previously called “artificial abortion.” Nowadays one has to specify that one means “an abortion by nature” or a miscarriage, and not an elective aboriton. The vocabulary has flipped.
There is something akin to a Nietzschean “will to power” here. What one calls “good” and “evil” are a function of my will to live life to the fullest (“conscientiously,” “authentically”). This is not measured by prior definitions of “the good human life.”
So, her entire set-up is a false problem, because it’s a way to ignore the debate about the morality of abortion in the first place.
The Socratic Question: “What is X?”
Harris raises this question right away in the main part of her article, pp. 981–82: “Whether or not abortion provision is ‘conscientious’ depends on what conscience is. Most ideas of conscience involve a special subset of an agent’s ethical or religious beliefs — one’s ‘core’ moral beliefs” (my emphasis). If this were a student’s philosophy essay, she would get full marks for raising the basic philosophical question, “What is conscience?” and then failing marks for the disastrous, non-dialectical way she answers it.
Subjective answer to “What is conscience?”
I recognize that this is not the genre of article to expect a full philosophical discussion. But if we ask “Who do you mean when you say ‘most ideas of conscience’?” or “Why a ‘special subset’ and what does this mean?” then we realize that Harris most probably means people who will already agree with her.
This becomes much clearer when she defines conscience subjectively, without any appeal to objective moral standards: “They did so because the beliefs that mattered most to them compelled them to” (p. 982; my emphasis); “They believed their abortion provision honored ‘the dignity of humanity’ and was the right— even righteous—thing to do” (ibid., my emphasis); “However, doctors (and, in some states, advanced practice clinicians) continue to offer abortion care because deeply held, core ethical beliefs compel them to do so.” (ibid.)
Note that right after this last quote (p. 982, end of col. a), we get a typical list of the types of moral arguments used to justify abortion. However, by framing the problem as she has and then introducing a subjective definition of conscience, it doesn’t matter whether these arguments are true or false. What matters is that they are “deeply held.” This is similar to the language used in Supreme Court decisions regarding what counts as a religion and therefore deserves protection.
So, Harris has not only sidestepped the moral debate (by the “false problem” way of framing her question), she also sidesteps the issue of whether her definition of conscience is true or not.
By sidestepping this philosophical question in this way, Harris has not only asked a question from a standpoint favorable to her conclusion (the “false problem” above) but she gets to answer it from that standpoint as well. The article becomes a sort of “Baltimore Catechism” call-and-response for her side of the argument.
Consistency critique of her definition
A closer critique of her philosophical failure is to note a better way to approach this topic of conscience. For instance, one could point out that real conscientious objection can only take place within the context of broader agreement. Martin Luther King (Letter from Birmingham Jail) agreed that it is just to have a nation of laws and inculcate respect for law in society. He disagreed about particular applications of the rule of law and particular laws.
By analogy, if this approach is acceptable to what Harris means by conscience, then her conclusion should also include calls for doctors to perform illegal abortions anyways. They agree that women’s health care is important and that the law should pre/proscribe its practice, but they disagree with the specifics.
This would at least give better support to the idea that she is defending a heretofore unnoticed sort of conscientious activity, on a par with civil disobedience in the past.
However, I doubt that NEJM would print such a call for civil disobedience of that sort.
The hidden appeal to objectivity in her view
Finally, it is rather important to note that the “objective” view of conscience is what actually does most of the work for the “subjective” view of conscience that Harris proposes.
After all, why am I obligated to respect your subjective rights of conscience? Am I objectively required to do so?
That is, think of a Kantian categorical imperative approach here: What if everyone were allowed to ignore claims of subjective conscience? Wouldn’t this lead to moral chaos? So, we all objectively have to act as if our subjective claims of conscience are objectively worthy of respect. But this makes the whole question categorical/objective again, and leads to further questions about whether some subjective claims are (in this Kantian sense) wrong.
Of course, Harris most probably has a utilitarian, pragmatic, or legal positivist view which would back up her view of conscience, and that would lead to a different answer to my question “Why am I obligated . . . ?” If she’s a legal positivist, then the answer would basically come down to force. Because the government has made this a law, they will compel you to comply or face the consequences of not “respecting” my conscience-based claims (i.e., by way of fines or imprisonment).
Note about her definitional argument, how it appeals to something true
See p. 982, col. a: “They did so because the beliefs that mattered most to them compelled them to.”
This line does capture the truth that we are obligated to follow our consciences (again, recall the previous argument: What is the source of this obligation? Does Harris recognize the truth of a person’s view who maintains that they are not obligated to follow their conscience?). In this sense, Harris is appealing to the more traditional notion of what conscience is, and hence her view has the ring of truth.
However, Harris does not address the formation of conscience. This goes back to the philosophical question she raised at the top of the page, “What is conscience?” and then assumed her own answer, which begs the question against the entire history of ethics which she skillfully dismissed in the introduction when she framed her question.
Another way to phrase the problem I see here is that no serious moral philosopher doubts that you must act upon deeply held and core ethical beliefs. The issue is a non-starter. The real issue is which beliefs ought we to have?
The Three Main Consequences
On p. 982, col. b: “Persistent neglect . . . .” etc., now that everything has been set up, Harris can just deduce consequences. These are the three points that she makes from 982b–982c.
First: Consequences in law
I think this argument can be made more precise as follows (keeping in mind her closing “empty concept” argument at the end of the article).
1. If conscience is a meaningful (not empty) concept, then the law should protect abortion providers’ “conscience for” claims.
2. But the law does not protect these claims (cf. laws in Georgia, Arizona, USAID).
∴ Conscience is not a meaningful concept. (But we want it to be meaningful!)
The argument only works because of her definition of conscience as subjective. Because the various abortion providers presumptively hold “deep, core beliefs” about abortion as a good, then it doesn’t matter if they are wrong about these. They can make a claim for the legislature to change the law.
Her hidden corollary to this argument is that the law, when deciding between competing conscience claims, should also favor pro-abortion providers and allow them to be exempt from the law. This is a bizarre claim because it ignores the actual difference between refraining from and engaging in. The law in permitting abortion in certain cases and proscribing it in others is defining the scope of engaging in permissible by law and the permissible types of refraining from. The laws delineating between the two already include the conscience rights of pro-abortion doctors in the former permission, with limitations. Harris’ view would result in the bizarre regime where certain doctors can break the law—in good conscience—and provide more abortion access that is legally permitted, just as other doctors can refrain from providing even the abortion access that is legally permitted.
This really does get back to King’s “Birmingham Letter.” How can you advocate breaking some laws and respecting others? Because some laws are unjust laws. However, since Harris’ argument does not truck in objective claims of justice (engaging in, refraining from), then what prevents absolutely absurd consequences to this view? Without examining the moral objectivity of the claims of conscience, then tax evasion, organized crime, internet piracy, etc., etc., would all be given a mode of argument to defend their “deeply held, core beliefs” about what is essential for their “good” and “dignity.”
Second, clinical practice: Stereotypes and stigma
This argument is really just a consequence of her definition of conscience excluding the possibility that a conscience can be well or poorly formed: “This understanding reinforces images of abortion providers as morally bankrupt” (p. 982, col. b).
A benefit of this argument is that it reveals the extent to which she has framed the issue exactly as we thought. She has sidestepped the issue of moral objectivity, and yet still wishes for the moral approbation that comes with that ethical viewpoint.
Also, there is a possible tu quoque fallacy here (literally: “you also”—a.k.a., the pot calling the kettle black). Wouldn’t there be thinkers on her side equally as willing to label pro-life doctors as “morally bankrupt”? If not, then why? How could pro-lifers possibly be “morally upright” for believing what they do (on Harris’ view)?
Or, is she imply that there should not exist such moral evaluative language? No, because (ibid.) “sociologists confirm that harassment and violence are extreme extensions of stigmatization.” Such moral evaluative language, when improperly used, leads to morally bad effects. Or does she think that harassment and violence not morally bad in an objective sense? Or are they bad only in the legal positivistic sense, the view that defines law as the commands of a superior backed by threats of force?
Third, bioethics: Purported asymmetry between negative and positive duties
In this argument, she finally recognizes the difference between negative and positive duties (a duty to refrain from and a duty to engage in). However, it is employed in a confused way to complain that conscience’s compulsion “to engage in” abortion to the full extent one desires is not protected under law because it is limited by law. One would have to read Mark Wicclair’s various arguments against the ethical asymmetry here, but prima facie they are rather implausible.
Harris summarizes this view as follows: “Moral integrity can be injured as much by not performing an action required by one’s core beliefs as by performing an action that contradicts those beliefs” (p. 982, col. c). If performing X is thought of as a positive duty, then does Wicclair’s view admit that there are situations where performing X can be bad, even if, when abstracting from particular situations, performing X is a good? E.g., “telling the truth about something” is good, but it is clear that just because something is true doesn’t mean it is good to tell it (stories that embarrass another, state secrets, things told one in confidence, etc.).
My the critique here is that her argument (by appeal to authority) is incomplete. One also has to show that in this particular circumstance a positive duty to perform X does not conflict with other duties and obtains in circumstances where its performance is still a good.
A general reason for why “Violations of negative claims are considered morally worse than violations of positive ones” is that it is easier to demarcate what one should refrain from, since these typically assume as given references to basic moral truths and moral goods. Hence many moral commands are negative (10 Commandments). However, it is harder to give positive moral commands as duties of the same strength. Hence these are usually called “supererogatory” duties and failure with regard to them less morally wrong. By contrast, the negative duties typically involve prohibition of very vicious actions.
However, this last point would not be fruitful for Harris to discuss, since it would involve recognizing a tradition of competing moral philosophies in respect to which which her article operates in innocence.
Conclusion: Paging Dr. Thrasymachus …
Among her concluding states, Harris observes:
Certainly, if abortion providers’ conscience-based claims require scrutiny, so do conscience-based refusals, to ensure that refusals are indeed motivated by conscience and not by political beliefs, stigma, habit, erroneous understanding of medical evidence, or other factors (p. 983).
This purports to be an appeal to fair or equal treatment. If pro-life doctors must be subject to scrutiny for their claims of conscience, then so also should pro-abortion doctors be subject to such scrutiny. In this way, her equal-opportunity view of conscience is more respectable because it appeals to established legal practices.
However, we have already noted that American judges—as currently held by the US Supreme Court—cannot decide if a religious or ethical belief is true, but only if it is sincerely held. In cases of conflicting claims of conscience, to what will the law appeal in order to settle the dispute? Moreover, the list of reasons Harris gives are irrelevant to establishing whether the belief is “sincerely held,” since basing such judgments on the facts of the matter lead to the admission that there do exist objective standards to conscience, and thus a moral debate to be had, which she avoids or denies by such avoidance. (That is, why not include among the “other factors” to which she refers various objective ethical standards?)
It seems difficult to avoid the conclusion that Harris’ view of conscience rests ultimately upon the notion of justice defended by Thrasymachus in Plato’s Republic, where justice is “the advantage of the stronger”—in this case, the side with more Supreme Court justices and greater progressive cultural clout.
Harris, Lisa H. “Recognizing Conscience in Abortion Provision.” The New England Journal of Medicine; Boston 367, no. 11 (2012): 981–83.
Hoffmann, Tobias. “Conscience and Synderesis.” In The Oxford Handbook of Aquinas, edited by Brian Davies, 255–62. Oxford: Oxford University Press, 2011. [link]
Sulmasy, Daniel P. “What Is Conscience and Why Is Respect for It So Important?” Theoretical Medicine and Bioethics 29, no. 3 (June 1, 2008): 135–49. [https://doi.org/10.1007/s11017-008-9072-2]